ex10-4.htm


    AMENDMENT
NO. 3 AND WAIVER TO PURCHASE AGREEMENT

     

    THIS AMENDMENT NO. 3 AND WAIVER TO
PURCHASE AGREEMENT is made as of December 11, 2009 (this “Amendment and Waiver”) between
GRANT THORNTON LIMITED
in its capacity as interim receiver and receiver and manager of EGC
Holdings Ltd. (“EGC
Holdings”) and not in its personal capacity (“Receiver”), and CENTURY CASINOS EUROPE GMBH
(“Purchaser”).

     

    WHEREAS,
Receiver and Purchaser are parties to a Purchase Agreement made as of November
6, 2009, as amended by that Amendment No. 1 to Purchase Agreement made as of
November 24, 2009, and as further amended by that Amendment No. 2 and Waiver to
Purchase Agreement made as of November 30, 2009 (together, the “Purchase
Agreement”).

     

    WHEREAS,
Receiver has requested that Purchaser waive its rights to terminate the Purchase
Agreement pursuant to and in accordance with the provisions of Section 10.2
thereof, and Purchaser has agreed, subject to the terms and conditions hereof
and the limitations contained herein.

     

    WHEREAS,
Receiver and Purchaser wish to further amend the Purchase Agreement upon the
terms and subject to the conditions set forth herein.

     

    NOW,
THEREFORE, in consideration of the mutual agreements in this Amendment and
Waiver, Receiver and Purchaser agree as follows:

     

    1.           Definitions

     

    Capitalized terms not defined herein
shall have the meanings ascribed to such terms in the Purchase
Agreement.

     

    2.           Amendments

     

    2.1           The
first sentence of Section 3.1 of the Purchase Agreement, prior to the first and
only occurring colon therein, shall be amended to read in full as
follows:

     

    “The
aggregate purchase price to be paid by Purchaser to Receiver for the Shares (the
“Purchase Price”) shall
be (i) Ten Million Six Hundred Fifty Thousand U.S. Dollars (U.S. $10,650,000)
(the “Base Amount”) plus
or minus (ii) the Adjustment Amount (as hereinafter defined), to be paid as
follows”.

     

    2.2           The
penultimate sentence of the first paragraph of Section 10.5 of the Purchase
Agreement shall be deleted in its entirety and the following inserted in
substitution therefor:

     

    “If the
Plans of Arrangement are approved by the Subsidiaries’ creditors at the meeting,
Receiver shall apply to the Court for (i) an order (the “Final Order”) that, among
other things, confirms the Plans of Arrangement as approved by the creditors and
directs the Receiver to make the payment or payments contemplated by Section 3.5
of each Plan of Arrangement and to otherwise complete all the steps and actions
contemplated by each Plan of Arrangement, and (ii) an order (the “Vesting Order”) in
substantially the form attached to this Agreement as Schedule “D”, and shall
make all such other filings with other governmental authorities or the TSX
Venture Exchange, if any, as Receiver may be required to make by any applicable
law, rule or regulation or any requirement of the TSX Venture Exchange binding
on Receiver or the Subsidiaries.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    2.3           The
second paragraph of Section 10.5 of the Purchase Agreement shall be amended by
replacing the period at the end of such paragraph with a semi-colon and adding
the following thereafter:

     

    “provided, further, however, that Receiver shall,
subject to Purchaser reasonably cooperating with Receiver in connection with
same, implement or cause the implementation of the following transactions
(together, the “Restructuring
Transactions”) after Receiver has obtained the Final Order and prior to
the Closing Date:

     

    
      	
               
      

            	
              (a)

            	
              with
      respect to Silver Dollar, in the following chronological
      order:

            


    

     

    
      	
               
      

            	
              (i)

            	
              the
      formation of a new wholly-owned subsidiary of Silver Dollar (“Silver Dollar
      Sub”);

            


    

     

    
      	
               
      

            	
              (ii)

            	
              the
      sale by EGC Holdings to Silver Dollar Sub of all the Intercompany
      Indebtedness that Silver Dollar owes to EGC Holdings immediately prior to
      such sale and, concurrently therewith, the issuance by Silver Dollar Sub,
      as maker, of a demand promissory note (the “Silver Dollar Sub Note”)
      to EGC Holdings, as holder, in an amount equal to the estimated fair
      market value, as determined by Receiver and Purchaser, each acting
      reasonably, of such Intercompany Indebtedness sold;
  and

            


    

     

    
      	
               
      

            	
              (iii)

            	
              the
      winding-up of Silver Dollar Sub and, prior to such winding-up being
      completed, the assumption by Silver Dollar of the Intercompany
      Indebtedness owed by Silver Dollar Sub to EGC Holdings evidenced by the
      Silver Dollar Sub Note and, immediately thereafter, the distribution to
      Silver Dollar of the Intercompany Indebtedness owed by Silver Dollar to
      Silver Dollar Sub.

            


    

     

    
      	
               
      

            	
              (b)

            	
              with
      respect to EGC Properties, in the following chronological
      order:

            


    

     

    
      	
               
      

            	
              (i)

            	
              the
      formation of a new wholly-owned subsidiary of EGC Properties (“EGC Properties Sub” and,
      together with Silver Dollar Sub, the “New
      Subsidiaries”);

            


    

     

    
      	
               
      

            	
              (ii)

            	
              the
      sale by EGC Holdings to EGC Properties Sub of all the Intercompany
      Indebtedness that EGC Properties owes to EGC Holdings immediately prior to
      such sale and, concurrently therewith, the issuance by EGC Properties Sub,
      as maker, of a demand promissory note (the “EGC Properties Sub
      Note”) to EGC Holdings, as holder, in an amount equal to the
      estimated fair market value, as determined by Receiver and Purchaser, each
      acting reasonably, of such Intercompany Indebtedness sold;
    and

            


    

     

    
      	
               
      

            	
              (iii)

            	
              the
      winding-up of EGC Properties Sub and, prior to such winding-up being
      completed, the assumption by EGC Properties of the Intercompany
      Indebtedness owed by EGC Properties Sub to EGC Holdings evidenced by the
      EGC Properties Sub Note and, immediately thereafter, the distribution to
      EGC Properties of the Intercompany Indebtedness owed by EGC Properties to
      EGC Properties Sub.

            


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    If the
Intercompany Indebtedness with respect to either of EGC Properties or
Silver Dollar, as determined by Canada Revenue Agency, the Receiver and as
agreed to by the Purchaser or as determined by the Purchaser  acting
reasonably, is not as set out in the Restructuring Transactions documents
(the "Redetermined
Indebtedness"), then the Receiver and the Purchaser agree
that (i) the Intercompany Indebtedness shall be increased or decreased
so as to equal the Redetermined Indebtedness and Intercompany Indebtedness
shall, for all purposes, be deemed to have been such amount as at the time
of the sale contemplated in clause (a)(ii) or clause (b)(ii) above, as the case
may be, and (ii) they shall take all such action as may be necessary to give
effect to such adjustment of the Intercompany Indebtedness nunc pro tunc.

     

    Receiver
agrees, on behalf of each Subsidiary, to make the election contemplated by
subsection 80.01(4) of the Income Tax Act (Canada) when required by such Act, in
respect of any Intercompany Indebtedness that is extinguished on completion of
the winding-up of Silver Dollar Sub and EGC Properties Sub contemplated by
clauses (a)(iii) and (b)(iii) above.”

     

    2.4           Section
12.1 of the Purchase Agreement shall be amended by deleting “and” at the end of
Section 12.1(d), replacing the period at the end of Section 12.1(e) with a
semi-colon followed by “and”, and adding the following after Section
12.1(e):

     

    
      	
               
      

            	
              “(f)

            	
              Purchaser’s
      receipt of copies of documents in form and substance reasonably acceptable
      to Purchaser evidencing the completion of all steps for implementation of
      the Restructuring Transactions that are necessary or desirable to be
      completed on or before Closing (as determined by Purchaser acting
      reasonably).”

            


    

     

    2.5           The
forms of the proposed Plans of Arrangement attached to the Purchase Agreement as
“Schedule C” thereto shall be removed therefrom and replaced with the proposed
Plans of Arrangement attached to this Amendment and Waiver as “Schedule
C”.

     

    3.           Waiver

     

    Purchaser
hereby irrevocably waives each and all of its rights under Section 10.2 of the
Purchase Agreement to terminate the Purchase Agreement.

     

    4.           Effectiveness
of Purchase Agreement

     

    The
Purchase Agreement as amended hereby, and subject to the waiver contained
herein, shall continue in full force and effect.

     

    5.           Counterparts

     

    This
Amendment and Waiver may be executed in any number of counterparts, each of
which will be deemed an original and all of which together constitute one and
the same instrument.  Executed copies of this Amendment and Waiver may
be delivered by facsimile transmission or other electronic means and it is not
necessary to confirm execution by delivery of originally executed
documents.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    IN
WITNESS WHEREOF the parties have executed this Amendment and Waiver effective as
of the day and year first above written notwithstanding the date of
execution.

    


     

    
      	
              GRANT THORNTON LIMITED
      in its capacity as interim receiver and receiver and manager of EGC
      Holdings Ltd., and not in its personal capacity

            	 
      	
              CENTURY
      CASINOS EUROPE GMBH

            
	
              Per:

            	/s/
      Mark Wentzell 	 
      	
              Per:

            	/s/Larry
      Hannappel
	 
      	
              Authorized
      Signatory

            	 
      	 
      	
              Authorized
      Signatory

            
	 
      	Mark
      Wentzell CA, CIRP	 
      	 
      	Larry
      Hannappel
	 
      	
              Name

            	 
      	 
      	
              Name

            
	 
      	Senior
      Vice President	 
      	 
      	Authorized
      Signatory
	 
      	
              Title

            	 
      	 
      	
              Title

            
	 
      	11
      December 2009	 
      	 
      	11
      December 2009
	 
      	
              Date
      of Execution

            	 
      	 
      	
              Date
      of Execution

            


    


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    The
undersigned, as solicitors for Grant Thornton Limited in its capacity as interim
receiver and receiver and manager of EGC Holdings Ltd., and not in its personal
capacity, (i) acknowledges the terms of the foregoing Amendment and Waiver, and
(ii) confirms that it is not released from its obligations under Sections 3 and
6 of the Purchase Agreement relating to the Deposit and the Section 3.1(b)
Amount.

     

     

    


    FASKEN
MARTINEAU DUMOULIN LLP

     

    


     

    
      	
              Per:

            	/s/
      Kibben Jackson
	 
      	
              Authorized
      Signatory

            
	 
      	Kibben
      Jackson
	 
      	
              Name

            
	 
      	Partner
	 
      	
              Title

            
	 
      	11
      December 2009 
	 
      	
              Date
      of Execution

            


    

    


     

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    Fortress
agrees that subject to satisfaction (or express written waiver by Fortress) of
each of the following conditions, Fortress shall execute the Fortress Release
and deliver the Fortress Release to Purchaser at the Closing: (i)  the
Vesting Order obtained by the Receiver includes a provision that the release of
any claims of Fortress against the Subsidiaries and the liens of Fortress in the
Assets and the Shares is without prejudice to and does not in any way adversely
affect the claims of Fortress against, and the liens of Fortress in the assets
of, any of the other Evergreen subsidiaries, and (ii) Fortress receives from the
Receiver, acting on behalf of such other Evergreen subsidiaries, reaffirmations
of the obligations of such other Evergreen subsidiaries to Fortress which
reaffirmations are in form acceptable to Fortress and are executed and delivered
pursuant to such court authorization as Fortress, the Receiver or its counsel
may deem necessary.

     

    


     

    FORTRESS
CREDIT CORP., as Agent for Fortress Credit Opportunities I LP and Fortress
Credit Funding II LP

     

     

    
       

      
        	
                By:

              	/s/
      Constantine Dakolias
	 
      	
              
	Name:	Constantine
      Dakolias
	 
      	
                 

              
	Title: 
      	President
	 
      	
              
	Date
      of Execution:	11
      December 2009